Ministry of Justice

Notes to accompany 4th update, March 2007

Changes made by the Criminal Procedure (Amendment) Rules 2007

Changes to the Consolidated Criminal Practice Direction

Changes made by the Criminal Procedure (Amendment) Rules 2007

All the rule changes come into force on 2nd April, 2007. The new rules about service of documents will apply in all cases on and after that date. New rules added to Part 2 of the Criminal Procedure Rules 2005 provide that the new indictment rules will apply only to cases sent, committed or transferred for trial to the Crown Court on or after 2nd April, 2007; and that the new witness summons rules will apply only where someone applies for a witness summons on or after that date.

The Amendment Rules make these main changes to the Criminal Procedure Rules:

  • New rules about service of documents (Part 4). The rules adopted in the Criminal Procedure Rules 2005 contained a number of different provisions about service that had been made at different times in the past and for different purposes. They contained some inconsistencies and, once they all became part of a single set of rules, the need for separate service rules for different purposes disappeared. As part of its programme of reform of existing rules the Committee has consolidated, revised and simplified those rules. Under the new rules documents can be served, generally, in any one of the various ways specified, including by electronic means where possible. But the new rules retain the present provision that restricts the method of service of certain documents – notably, summonses – to well established ways of bringing them to the personal attention of the intended recipient.
  • New rules about indictments (Part 14). The new rules consolidate the procedure rules about indictments. They are shorter and clearer than the rules they replace. In a judgment given in June, 2005 (R v Liaquat Ali and others [2005] EWCA Crim 87) the Court of Appeal called for the Criminal Procedure Rule Committee to review aspects of the Indictment Rules 1971 that the court thought had caused an unnecessary difficulty for the prosecution in that case.The Criminal Procedure Rule Committee consulted widely on these rules between March and June 2006. It invited comments from participants in the criminal justice system including the various professional bodies involved. It considered the compatibility of its proposals with Article 6 of the European Convention on Human Rights and took account of the corresponding rules in Scotland. It took advice from leading counsel. New rule 14.2(2) of the Criminal Procedure Rules 2005 is a revision of what is often called the “rule against duplicity”. The new rule allows a prosecutor in certain circumstances to bring a single charge against a defendant even though that includes more than one incident of the offence alleged – for example, where the defendant has laundered the proceeds of drug trafficking in comparatively small weekly sums for week after week, or has assaulted the same victim in the same way repeatedly over a period of time. The Committee took account among other things of the potential under the old rules for a perceived unfairness to a victim of multiple offending where out of many alleged offences only a few are prosecuted as examples, giving the impression that the victim’s distress has been underestimated or that he or she has not been believed. The Committee was satisfied that the new rule reflects what judgments of the House of Lords in the past have found consistent with fundamental principles of fairness.

The new rules are supplemented by a new Practice Direction which is described in the notes below.

  • New rules about witness summonses (Part 28). The new rules are shorter and clearer than those that they replace. The Criminal Procedure Rule Committee received reports of difficulties with the existing procedure rules about witness summonses. In particular it was reported that applications for the production of confidential documents held, for example, by health and local authorities often were made late and without adequate consideration being given to the relevance and admissibility of the documents concerned. The same difficulties had been pointed out by Lord Justice Auld in his Review of the Criminal Courts of England and Wales presented to the Lord Chancellor and published in October, 2001.The Criminal Procedure Rule Committee consulted widely on these rules between June and September 2006. It invited comments from participants in the criminal justice system, including the various professional bodies involved, and from organisations representing bodies likely to be recipients of witness summonses. During the period of the consultation two applications for judicial review arising out of the operation of the existing rules came before the Administrative Court: R (TB) v Stafford Crown Court [2006] EWHC 1645 Admin and R (Cunliffe) v West London Magistrates’ Court and Others [2006] EWHC 2081 Admin. In the first of those the court commented in its judgment on the Committee’s proposals. The Committee therefore was able to take account of both those cases. An important feature of the new rules is that before issuing a witness summons the court must be satisfied that it has taken proper account of the rights of any person the production of whose medical or other confidential records is being sought, and such a person – frequently the victim of the offence – must have had an opportunity to make representations.

In addition, the Amendment Rules make these other changes:

  • The rules about custody and bail in Part 19 of the Criminal Procedure Rules are amended to take account of applications under section 47(1E) of the Police and Criminal Evidence Act 1984 for variation of bail conditions imposed by the police before a defendant is charged, and to make some minor consequential amendments.
  • The rules in Part 31 of the Criminal Procedure Rules are extended to apply in magistrates’ courts as well as in the Crown Court. The rules in Part 31 deal with the restrictions imposed by sections 34, 35 and 36 of the Youth Justice and Criminal Evidence Act 1999 which prevent a defendant in person cross-examining a witness who is the victim of a sexual offence. The old rules in Part 31 applied only in the Crown Court despite the fact that the restrictions under the 1999 Act in principle could apply in magistrates’ courts as well. This change removes that anomaly.

Changes made by Amendment No. 15 to the Consolidated Criminal Practice Direction

All these changes come into force on Monday 2nd April, 2007.

The latest amendment to the Practice Direction adds the following new paragraphs:

  • a new direction about indictments (paragraph IV.34). This direction supplements the new rules in Part 14 of the Criminal Procedure Rules. Among other things it gives examples of when a ‘multiple incident’ count under new rule 14.2(2) may be appropriate.
  • a new direction about vulnerable defendants (paragraph III.30). This direction replaces paragraph IV.39 of the Practice Direction. It therefore applies in magistrates’ courts as well as in the Crown Court. It takes account of decisions of the European Court of Human Rights and of amendments to the Youth Justice and Criminal Evidence Act 1999 made by section 47 of the Police and Justice Act 2006. It requires courts to take account of a defendant’s age and maturity, and of his or her ability to understand what is going on, in making arrangements for trial.
  • a new direction about case management (paragraph IV.41). These directions introduce new arrangements for the conduct of plea and case management hearings in the Crown Court. Between 2005 and 2006 the Criminal Procedure Rule Committee consulted widely on new arrangements to recommend to the Lord Chief Justice. These new arrangements and the associated new forms are the product of that consultation.

In addition, the Practice Direction amendment introduces these new forms:

  • two forms of Crown Court indictment for use in connection with Part 14 of the Rules, one for ordinary cases and the other for use in two stage trials under sections 17 to 21 of the Domestic Violence, Crime and Victims Act 2004.
  • a new form of application for a witness summons for use in connection with Part 28 of the Rules.
  • new case management forms for use at plea and case management hearings in the Crown Court and in magistrates’ courts.
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